Sampson Lumber Co. v. Tucci (In re Tucci)

462 B.R. 278, 2011 Bankr. LEXIS 4402
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedNovember 15, 2011
DocketBankruptcy No. 10-11451-WCH; Adversary No. 10-01161
StatusPublished
Cited by2 cases

This text of 462 B.R. 278 (Sampson Lumber Co. v. Tucci (In re Tucci)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sampson Lumber Co. v. Tucci (In re Tucci), 462 B.R. 278, 2011 Bankr. LEXIS 4402 (Mass. 2011).

Opinion

[279]*279MEMORANDUM OF DECISION

WILLIAM C. HILLMAN, Bankruptcy Judge.

I. INTRODUCTION

The matters before the Court are the “Defendant Carl W. Tucci’s Motion for Summary Judgment Pursuant to Fed. R.Civ.P. 56” (the “Motion for Summary Judgment”) filed by the debtor, Carl W. Tucci (the “Debtor”) and the “Brief of Plaintiff, Sampson Lumber Co., Inc., in Opposition to Motion for Summary Judgment of Defendant, Carl W. Tucci” (the “Opposition”) filed by the plaintiff, Sampson Lumber Co., Inc. (the “Plaintiff’). Through the Motion for Summary Judgment, the Debtor seeks a determination that the Plaintiffs claim is dischargeable. Because the claim cannot satisfy the elements of 11 U.S.C. § 523(a)(2), I will grant the Motion for Summary Judgment.

II. PROCEDURAL MATTERS

Pursuant to Local Rule 56.1 (“Local Rule 56.1”) of the United States District Court for the District of Massachusetts, adopted and made applicable to proceedings in the Bankruptcy Court by Massachusetts Local Bankruptcy Rule (“MLBR”) 7056-1, motions for summary judgment must include “a concise statement of material facts of record as to which the moving party contends there is no genuine issue to be tried, with page references to affidavits, depositions, and other documentation.”1 Failure to include such a statement constitutes grounds for denial of the motion.2 Oppositions to summary judgment must similarly be accompanied by a statement of material facts to which the opposing party contends that there exists a genuine issue to be tried, with supporting references to the record.3 All referenced documents must be filed as exhibits to the motion or opposition.4 Material facts set forth in the moving party’s statement are deemed admitted for purposes of summary judgment if not controverted by an opposing statement.5

The Debtor filed a statement pursuant to Local Rule 56.1, “Defendant Carl W. Tucei’s Concise Statement of Material Facts in Support of Motion for Summary Judgment,” (the “Statement of Material Facts”) on September 14, 2011.6 The Plaintiff did not file an opposing statement of facts together with the Opposition. Accordingly, the facts set forth in the Debt- or’s Statement of Material Facts are deemed admitted for purposes of summary judgment.

III. BACKGROUND7

The Plaintiff is a seller of lumber and building supplies with its place of business in Pembroke, Massachusetts.8 The Debt- or had been a customer of the Plaintiff for a period of time prior to August 8, 2003, during which he paid for his purchases by [280]*280cash or check.9 On August 8, 2003, the Debtor completed a credit application (the “Application”) to apply for a credit account with the Plaintiff.10 The Debtor hand wrote the Application and listed Star Realty Trust (the “Trust”) as the business seeking credit.11 The Application requested information for “All Owners” of the Trust, and the Debtor wrote only his name and address (the “Statement of Ownership”) (emphasis in original).12 The Debt- or, however, owned only 65% of the beneficial interest in the Trust.13 The Debtor did not disclose that Robert Carey Jr. owned the remaining 35% interest.14 The Plaintiff checked the credit references provided by the Debtor, and approved the Application.15

The Debtor purchased materials from the Plaintiff on credit, and then was unable to pay his credit account.16 The Plaintiff alleges in the Complaint that the Debtor represented that he was unable to pay because he was still awaiting payment from a third party for an earlier job.17 The Plaintiff filed a collection action (the “Plymouth Action”) in Plymouth District Court against the Debtor on January 2, 2007, asserting three claims: (1) breach of contract, (2) goods sold and delivered, and (3) quantum meruit.18 No claims of fraud were brought in the Plymouth Action or addressed by the Plymouth District Court.19 The Plaintiff alleges that during the Plymouth Action, the Debtor’s counsel made statements to the effect that the Debtor was not liable for debts of the Trust.20 Nevertheless, the Plymouth District Court found that because the Debtor had no authority to act on the Trust’s behalf when he submitted the Application, the Debtor was liable for the Trust’s debt to the Plaintiff to the extent the Trust could not pay.21 The Plymouth District Court entered judgment against the Debt- or in the amount of $55,801.97, including interest and attorney’s fees.22 The Debtor subsequently filed a voluntary Chapter 7 petition on February 16, 2010.23

On June 11, 2010, the Plaintiff filed a complaint (the “Complaint”) against the Debtor and his wife, co-debtor Yvette Tuc-ci (collectively, the “Debtors”), seeking to establish the nondischargeability of the judgment awarded against the Debtor pur[281]*281suant to 11 U.S.C. § 523(a).24 The Plaintiffs Complaint argues that three false statements attributable to the Debtor are grounds for nondischargeability: (1) the Debtor’s written Statement of Ownership, (2) the Debtor’s oral representation that he could not pay his credit account because he was awaiting payment from a third party for an earlier job, and (3) the Debt- or’s counsel’s oral statements made during the Plymouth Action to the effect that the Debtor was not liable for debts of the Trust.25 The Complaint raises both 11 U.S.C. § 523(a)(2)(A) and 11 U.S.C. § 523(a)(2)(B) as grounds for nondis-chargeability.26

On September 14, 2011, the Debtors each filed separate motions for summary judgment. The Motion for Summary Judgment addresses both 11 U.S.C. § 523(a)(2)(A) and 11 U.S.C. § 523(a)(2)(B).27 Nevertheless, the Plaintiffs Opposition, filed on September 21, 2011, failed to oppose the Motion for Summary Judgment with regard to § 523(a)(2)(A). In fact, the Plaintiff stated in a footnote that the Debtor’s reliance on Palmacci v. Umpierrez,28 which establishes the elements of an 11 U.S.C. § 523(a)(2)(A) claim, is inapposite because “[t]hat case deals with a different section of the Bankruptcy Code.”29

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
462 B.R. 278, 2011 Bankr. LEXIS 4402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sampson-lumber-co-v-tucci-in-re-tucci-mab-2011.